Reading Room Document

Additional Questions Concerning Use of the EINSTEIN 2.0 Intrusion-Detection System

The deployment of an intrusion-detection system known as the EINSTEIN 2.0 program on the unclassified computer networks of the Executive Branch is consistent with the federal and state laws discussed in this opinion. Under the best reading of the statute, the EINSTEIN 2.0 program would not violate section 705 of the Communications Act, because it would fall within section 705's exception permitting a person to "divulge" a communication through "authorized channels of transmission or reception," which allows either the sender or the recipient of an Internet communication to convey the required authorization by consenting to a communication's disclosure, including by clicking through an approved log-on banner or signing the computer-user agreement in order to gain access to a government-owned information system. If section 2702(a)(3) of the Stored Communications Act applied to the EINSTEIN 2.0 program, the exception in section 2702(c)(1)(C) permitting disclosure based on "the lawful consent of the customer or subscriber" would also apply, because in this context the government, and no other party, should be understood as the "customer or subscriber" of the Internet service provider. If a state law imposed requirements on the EINSTEIN 2.0 program exceeding those imposed by these federal statutes, it would stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress and therefore be unenforceable under the Supremacy Clause of the Constitution. The OLC does not provide release dates for its opinions, so the release date listed is the date on which the opinion was authored. The original opinion is available at www.justice.gov/olc/file/2009-08-14-einstein-addl-qs/download.

August 14, 2009